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Judges and the Rule of Law

Two weeks ago federal judge Nancy Freudenthal ruled against an
Interior Department policy that rolled back exemptions from
environmental review for certain oil-and-gas activities on federal
lands. In “a setback for the Obama administration, which has sought
to expand scrutiny of the environmental impact of oil-and-gas
drilling,” she said that the policies were issued without proper
public notice and comment.

Three months ago a Wisconsin judge ruled that Wisconsin’s
controversial collective-bargaining had been passed improperly.
(That ruling was reversed in June by the Wisconsin Supreme Court,
and the law went into effect.)

Whatever you think about the substance of these laws, we should
all be glad that there are independent judges, in both federal and
state courts, prepared to strike down the actions of the
legislative and executive branches when necessary. When liberal
judges do that, conservatives disparage it as “judicial activism.”
When conservative judges do it, it’s liberals who complain about
“judicial activism.” But everyone who believes in individual
rights, limited government, and the rule of law should welcome a
vigilant judiciary. It is the responsibility of judges to strike
down laws, regulations, and executive and legislative actions that
exceed the authorized powers of government, violate individual
rights, or fail to adhere to the rules of due process.

In proposing the Bill of Rights in the House of Representatives,
James Madison said that

independent tribunals of justice will consider
themselves in a peculiar manner the guardians of those rights; they
will be an impenetrable bulwark against every assumption of power
in the legislative or executive; they will be naturally led to
resist every encroachment upon rights expressly stipulated for in
the constitution by the declaration of rights.

And in Federalist 78, Alexander Hamilton wrote that the
judiciary would be the “least dangerous” branch of government
because it possesses the power of neither sword nor purse.

Sometimes the courts live up to those aspirations, in cases from
Lochner and Brown v. Board right up to
the last days of the past Supreme Court term. Sometimes not so
much, as Robert A. Levy and William Mellor wrote in The Dirty
Dozen: How Twelve Supreme Court Cases Radically Expanded Government
and Eroded Freedom. But as legal scholar Richard Epstein said
in a 1984 debate with Judge Antonin Scalia, “the imperfections of
the judicial system must be matched with the imperfections of the
political branches of government.” And legislatures make plenty of
mistakes.

Last summer Judge Andrew Napolitano concluded one of his
Freedom Watch programs on the Fox Business Channel by
hailing four federal judges who had courageously and correctly
struck down state and federal laws:

Judge Martin L. C. Feldman, who blocked President Obama’s
moratorium on oil drilling in the Gulf of Mexico;

It was a remarkable summer for judicial protection of individual
rights and limited government.

One charge that’s often raised in these politically polarized
times is that judges simply rule on the basis of their partisan
allegiance — Democratic-appointed judges uphold Obamacare,
Republican-appointed judges rule against it. That would be a
troubling pattern. One of the reasons we have life tenure for
federal judges is to free them from such political pressures.
Fortunately, the charge is not entirely true. Judge Jeffrey Sutton,
a former law clerk to Justice Scalia who was vigorously opposed by
liberals when President George W. Bush appointed him to the Sixth
Circuit, voted to uphold the individual mandate. Judge Frank Hull,
a Clinton appointee, voted in the 11th Circuit to strike down the
law. Judge Freudenthal, who struck down the Obama administration’s
attempt to make oil and gas drilling on federal lands more
difficult, is not only a Democrat; she was appointed to the bench
in 2009 by President Obama while her husband Dave served as the
Democratic governor of Wyoming. And perhaps most famously, Judge
Vaughn Walker, who struck down Proposition 8, was appointed by
President Reagan in 1987; his nomination was so effectively opposed
by Rep. Nancy Pelosi, Sen. Edward M. Kennedy, the NAACP, and
gay-rights groups that he had to be renominated two years later by
another Republican president, George Bush.

Democrats and Republicans alike can read the Constitution. They
both know that it says that “Congress shall make no law …
abridging the freedom of speech, or of the press.” They both know
that the principal author of the Constitution, James Madison, wrote
in Federalist 45, “The powers delegated by the proposed
Constitution to the federal government are few and defined.” They
both know that American citizens, even those accused of terrorism,
are entitled to their “constitutional rights — like habeas
corpus, which requires the government to justify continued
detentions, and the Sixth Amendment, which assures a speedy and
public jury trial with assistance of counsel.”

The separation of powers, with an independent judiciary, is
essential to the rule of law and the protection of freedom. It is
refreshing to see how often judges do live up to the expectation
that they would “be an impenetrable bulwark against every
assumption of power in the legislative or executive.”